No. 95-492

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN THE MATTER OF J.B.,

Youth in Need of Care.

APPEAL FROM: District Court of the Thirteenth Judicial District,

1n and for t'he County of Yellowstone,

The Hon. Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Chris J. Nelson, Billings, Montana

For Respondent:

Joseph P. Mazurek,

Coughlin,

Attorney General,

Assistant

Cregg W.

Attorney General, Helena,

Montana; Dennis Paxinos, Yellowstone

Marcia Good Sept,

County

Attorney, Deputy Yellowstone

County Attorney; Damon L. Gannett, Gannett Law Firm,

Billings, Montana (guardian ad litem)

Submitted on Briefs: May 9, 1996
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

This is an appeal from the judgment of the Thirteenth Judicial

District Court, Yellowstone County, declaring J.B. a youth in need

of care and granting continued temporary custody of J.B. to the

Montana Department of Family Services through May 1996.

We reverse and remand.

We address the following issue as dispositive:

Did the District Court err in granting continued temporary

custody of J.B. to the Montana Department of Family Services?

FACTS

In September 1993, the Yellowstone County Attorney's Office,

on behalf of the Montana Department of Family Services (DFS) ,

petitioned for temporary investigative authority and protective

services for five children of T.B. In a report to the court

attached to the petition, a social worker described the problems

T.B. and her children were having individually and as a family.

The court granted the petition.

On January 20, 1994, the District Court issued an order

declaring all five children to be youths in need of care. The

order granted DFS temporary custody of the children. The court's

order was based on a social worker's report which, like the

September 1993 report, described the difficulties T.B. was having

raising her children. This report mentioned that appellant, the

natural father of one of the children, J.B., had indicated his

desire to obtain custody of J.B. Appellant, who resides in

Boulder, Colorado, was present at this hearing and stipulated to

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DFS's request for temporary custody. On March 29, 1994, the

District Court approved a treatment plan for the appellant which

required that he submit to psychological and chemical dependency

evaluations.

On June 30, 1994, DFS petitioned for permanent legal custody

and termination of parental rights and the right to consent to

adoption. In the petition, both J.B's mother and the appellant

were listed as parents, although the petition requested only the

termination of the mother's parental rights. DFS asked the court

for an order granting temporary custody of J.B. to DFS for an

additional six months. On September 30, 1994, appellant filed his

response to DFS's request and also petitioned the court for custody

of J.B.

A hearing was held on DFS's petition in November 1994.

Appellant again stipulated that DFS could retain temporary custody

for an additional six months. On December 12, 1994, the District

Court issued an order to that effect. This order also terminated

the parental rights of J.B's mother, T.B.

On April 7, 1995, the District Court approved a second

treatment plan for appellant. The treatment plan required

appellant to submit to four random urinalyses per month and to

begin counseling to learn how to meet the emotional needs of his

child. After the approval of the second treatment plan, appellant

again petitioned the court for permanent custody of J.B. DFS

responded by seeking to extend its temporary custody of J.B. for an

additional year.
A hearing on both appellant's petition and DFS's motion for an

extension of custody was scheduled for July 12, 1995. After the

hearing, the District Court determined that DFS should retain

temporary custody of J.B. until May 18, 1996. Appellant filed a

notice of appeal on September 20, 1995.

DISCUSSION

Did the District Court err in granting continued temporary

custody of J.B. to the Montana Department of Family Services?

In their respective briefs, in the context of the grant of

custody to DFS, the parties have raised issues related to but

differently phrased from the issue we pose here. Based on the

record, we conclude that our formulation of this issue is correct

and effectively disposes of those issues raised by the parties.

This Court has held that a non-parent may be entitled to

commence a child custody proceeding. In re Marriage of K.E.V.

(19941, 267 Mont. 323, 883 P.2.d 1246; In re Custody of R.R.K

(19931, 260 Mont. 191, 859 P.2d 998 (provided that the non-parent

can establish standing). Conversely, we have also recognized the

need to uphold the constitutionally protected rights of a natural

parent to his or her child. Babcock v. Wonnacott (1994), 268 Mont.

149, 152, 885 P.2d 522, 524; In re Matter of Doney (1977), 174

Mont. 282, 570 P.2d 575.

In the present action, there are two parties petitioning for

custody of the child: J.B.'s natural father and the State of

Montana (through DFS). For a court to have jurisdictional

authority to grant custody to a non-parent, certain steps must be

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followed. When the State is a party to a custody proceeding, it

initially must file a petition in a district court alleging the

nature of the legal custodian's abuse or neglect. Section 41-3-

401, MCA. After the submission of the petition, a court will then

hold an adjudicatory hearing to determine if the child is a "youth

in need of care." Section 41-3-404, MCA. If the child is

determined to be a youth in need of care, the court will then set

a date for a dispositional hearing. At the dispositional hearing,

the court has the authority to transfer legal custody of the child.

Section 41-3-406, MCA.

In this matter, such a petition was submitted. All five

children were declared youths in need of care. However, the

allegations of abuse and neglect were made in the context of the

termination of parental rights of the then custodial parent, J.B's

mother T.B. In addition to the rights parents may have as a

couple, they also have individual rights with respect to their

children. In re Matter of T.E.R. (1979), 180 Mont. 340, 346, 590

P.2d 1117, 1121.

The State did not petition for the termination of appellant's

parental rights. Indeed, upon the termination of the mother's

parental and custodial rights, appellant was entitled to custody of

J.B. Babcock, 885 P.2d at 524.

In Babcock, the mother was unable to provide care for the

child due to incarceration. The district court in that case

awarded custody to the child's great aunt. This Court reversed,

holding that since the mother was unable to care for the child, the

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father was entitled to the custody of the child. Babcock, 885 P.2d

at 524. This Court based its decision in part on the

constitutionally protected rights parents have to a child. Stanley

v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.

The Court further relied on 5 40-6-221, MCA, which provides in part

that:

The father and mother of an unmarried minor child are

equally entitled to the custody, services, and earnings

of the child. If either parent be dead or unable or

refuses to take the custody or has abandoned his or her

family, the other is entitled to the custody, services,

and earnings of the child, unless custody is determined

otherwise pursuant to 40-4-221. (Emphasis added.)

We conclude that when the court terminated T.B.'s parental

rights, she was unable to take custody of J.B. Therefore,

appellant, the other parent, Was entitled to custody. This

entitlement is not immune from contest, but the contesting party,

here DFS, must follow the proper procedure outlined above in order

to obtain custody. A parent's right to custody in this situation

is not so fleeting that it can hinge on a court's disposition of a

related yet distinct matter. The District Court determined J.B. to

be a youth in need of care and granted temporary custody to DFS

based on its consideration of T.B.'s conduct toward the child; to

relieve appellant of custody, the court was required to consider

his conduct as well.

In other words, in order to have the jurisdictional authority

to award DES temporary custody, the court must determine that J.B.

is a youth in need of care. The court must make this determination

on the basis of evidence of appellant's abuse or neglect. Section

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41-3-102(17), MCA, defines a youth in need of care as a "youth who

is abused or neglected." Section 41-3-102(5) (a), MCA, defines

"child abuse or neglect" as:

(i) harm to a child's health or welfare; or

(ii) threatened harm to a child's health or welfare.

(b) The term includes harm or threatened harm to a

child's health or welfare by the acts or omissions of a

person responsible for the child's welfare.

DFS's original petition does not allege abuse or neglect on

the part of appellant. However, both DFS and the court raised

concerns about appellant's prior chemical dependency problems.

Appellant stated and various examinations confirmed that he had not

used alcohol or drugs for years. The concerns of DFS and the court

were based largely on the results of a urinalysis in which

appellant tested positive, but the record shows that the test

results were incomplete and should properly have been considered

inconclusive. In any event, these concerns clearly do not amount

to a consideration of allegations of child abuse or neglect on the

part of appellant, and do not provide a sufficient basis on which

to conclude that J.B. would be in danger of harm or threatened

harm. See In re Matter of M.G.M (1992), 201 Mont. 400, 408, 654

P.2d 994, 998.

The court failed to address any evidence of appellant's abuse

or neglect of the child. "[Al finding of abuse, neglect, or

dependency is the 'jurisdictional prerequisite for any court

ordered transfer of custody.'" M.G.M., 654 P.Zd 998 (citations

omitted). We hold that the District Court erred in concluding that
J.B. was a youth in need of care, and therefore the court erred in

granting DFS temporary custody

Our holding effectively disposes of the other issues raised by

the parties. We reverse and remand for proceedings consistent with

this opinion

Justices

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September 19, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail,

following named:

Chris J. Nelson

Attorney at Law

1643 Lewis Ave., Ste. 214

Billings, MT 59102

Hon. Joseoh P. &zurek. A.G.

Cregg W.*Coughlin, Assistant

215 N. Sanders

Helena. MT 59620

ED SMITH

CLERK OF THE SUPREME

STATE OF MONTANA

prepaid, to the

COURT